People v. Helmer

• Citation: 49 N.E. 249,154 N.Y. 596
• Parties: PEOPLE v. HELMER.
• Decision Date: 11 January 1898
• Court: New York Court of Appeals

154 N.Y. 596

49 N.E. 249

PEOPLE

v.HELMER.

Court of Appeals of New York.

Jan. 11, 1898.

Appeal from supreme court, appellate division, Fourth department.

Joshua S. Helmer was convicted of exhibiting false books to one of the bank examiners of the state. From a judgment of the appellate division (43 N. Y. Supp. 642) affirming the same, he appeals. Reversed.

The defendant was indicted at a court of oyer and terminer held in and for Niagara county in April, 1894. At the time of the alleged offense he was president of the Merchants' Bank of Lockport, which was duly organized under the laws of this state, and was in general charge of its affairs. Among other books kept in the bank was one known as the ‘Tickler’ or ‘Cash Book,’ which purported to show correctly the cash on hand at the close of business on each day. B. S. W. Clark was a bank examiner duly authorized and appointed to investigate the affairs of that bank. On the morning of the 21st or September, 1893, Clark, as such examiner, appeared at its banking office for that purpose, The defendant was present, and was informed by the bank examiner of the purpose of his visit, and of his desire to count the cash before the bank opened for business. The books were thereupon presented, including the tickler or cash book, and the examination commenced. The defendant was present the most of the time until it was concluded.

Gray, J., dissenting.

John G. Milburn, Tracy C. Becker, and Eugene M. Ashley, for appellant.

P. F. King and Abner T. Hopkins, for the People.

MARTIN, J. (after stating the facts).

The jurisdiction of this court is limited to the review of questions of law, only, and no unanimous decision of the appellate division that there is evidence supporting or tending to sustain a verdict not directed by the court can be reviewed by the court of appeals. Const. art. 6, § 9; Szuchy v. Iron Co., 150 N. Y. 219, 44 N. E. 974;People v. Barker, 152 N. Y. 417, 46 N. E. 875;Harroun v. Light Co., 152 N. Y. 212, 46 N. E. 291;People v. Ledwon, 153 N. Y. 10, 15,46 N. E. 1046. Consequently no questions of fact, or questions relating to the sufficiency of the evidence, can be reviewed on this appeal.

The indictment was based upon the provisions of section 592 of the Penal Code, which, so far as material, provide that an officer of a corporation, who knowingly exhibits a false book to any public officer authorized by law to investigate its affairs, with intent to deceive such officer in respect thereto, is punishable by imprisonment not to exceed 10 years. At the close of the testimony the defendant moved to dismiss the indictment upon the ground that it did not charge a crime. This motion was denied, and the defendant excepted. He now contends that the indictment was defective in failing to allege that the tickler or cash book was exhibited by the defendant to the bank examiner with intent to deceive him in respect thereto. The indictment, in effect, charged that the defendant, as president and director of the Merchants' Bank of Lockport, at the time named, feloniously, willfully, wrongfully, and knowingly presented, exposed, and exhibited its cash book or tickler to B. S. W. Clark, a public officer duly authorized and commissioned to investigate the affairs of that bank, with intent to deceive such public officer, contrary to the form of the statute in such case made and provided. The only omission claimed is of the words ‘in respect thereto.’ While it may be that, under the strict and technical rules of the common law, this indictment might be regarded as defective, yet, under the liberal procedure established by our statutes, we think it was sufficient. Under the present practice, an indictment is sufficient if the act or omission charged as a crime is plainly and concisely set forth with such a degree of certainty as to enable the court to pronounce judgment according to the right of the case, and no indictment is insufficient by reason of any imperfection in matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits. Nor does any error or mistake therein render it invalid, unless it actually prejudices, or tends to prejudice, the defendant in respect to a substantial right. Code Cr. Proc. §§ 284, 285, 684. The purpose of an indictment is to identify the charge against a defendant so that his conviction or acquittal may inure to his subsequent protection, and to apprise him of the nature and character of the offense charged, and of the facts which may be proved, so as to enable him to prepare his defense. When tested by these principles, it is obvious that the indictment was sufficient, as there was no defect which affected any substantial right of the defendant. It fairly apprised him of the facts to be proved against him, and so clearly identified the crime charged that a judgment would protect him from a subsequent conviction. Hence, we are of the opinion that the defendant's exception to this ruling was not well taken.

The defendant's counsel also insists that the court erred in admitting in evidence the quarterly report of the Merchants' Bank, showing its condition on the 19th day of September, 1893, which was signed and verified by the defendant. It was proved upon his cross-examination, and was obviously admissible to contradict his testimony. As it was, however, received without objection or exception, it presents no question which can be determined upon this appeal.

On the trial the questions most seriously litigated were whether certain entries in the tickler of cash book were false, to the knowledge of the defendant, and whether, with that knowledge, he exhibited it to the bank examiner. The evidence to establish these facts was, to some extent, circumstantial. In submitting the case to the jury, the learned trial judge, after charging that there was no direct evidence to show that the defendant exhibited this book to the bank examiner, and that he was in and about the bank, and knew the purpose of the visit of the examiner, then added: ‘And, as the court at general term had said in this case, that was sufficient to satisfy the jury that there was an inspection or presentation of the books to the examiner.’ That part of the charge was excepted to by the defendant, and this exception presents the only serious question in the case. The possible effect of that portion of the charge was to convey the idea that the general term had determined the precise question which was before the jury. It is manifest that this statement was improper, as the question whether the defendant had knowingly exhibited false books to the examiner was purely one of fact, to be determined by the jury from the evidence before it, unprejudiced by any statement as to what another court might have said upon that subject. The obvious consequenceof that portion of the charge was to create a tendency on the part of the jury to rely upon what it may have understood to have been the decision of the general term, rather than upon the evidence. While it may be that it had no such effect, still, as such a result may have been produced, it cannot be said that the error was harmless. Where a charge is erroneous, the verdict must be set aside, unless it is apparent that the error did not and could not have effected the verdict. It is not for the defendant to show how he was injured by it, but it rests with the prosecution to show that no possible injury could have arisen from the error. Greene v. White, 37 N. Y. 405;Clarke v. Dutcher, 9 Cow. 674;Stokes v. People, 53 N. Y. 164;People v. Corey, 148 N. Y. 476, 42 N. E. 1066;People v. Strait, 154 N. Y. 165, 47 N. E. 1090;People v. Koerner, 154 N. Y. 355, 48 N. E. 730. We are of the opinion that the defendant's exception to the charge was well taken, and, as we cannot say that it could by no possibility have prejudiced the defendant, it follows that the judgment must be reversed, and a new trial granted.

O'BRIEN, J. (dissenting).

The defendant was convicted of a felony under section 592 of the Penal Code, upon an indictment charging him with having exhibited to an examiner of the bank department a false book concerning the condition of a state bank, of which he was the president, and which subsequently failed. On the argument of the appeal in this court his counsel insisted that there was no evidence whatever in the case upon which the issues of fact could properly have been submitted to the jury. On the part of the people this contention is answered by the suggestion that, whether there was evidence or not, this court has no jurisdiction to look into the record for the purpose of ascertaining that fact, or to examine such a question, when the appellate division has affirmed the conviction by a unanimous vote, as it has in this case. The principle is of so much importance, and the decision of the majority of this court upon the point is such a wide departure from what seems to me to be the law of the case, that I am constrained to dissent from the doctrines of the prevailing opinion, which sustains the contention of the prosecution.

The point is made by the district attorney that when an issue of fact has been joined upon an indictment, and a conviction for any offense, not punishable by death, is followed by unanimous affirmance at the appellate division, this court is deprived of all jurisdiction to examine the record to see whether the accused has been convicted upon evidence, or without any evidence whatever. If this proposition be correct, then all appeals to this court in such cases ought to be prohibilted, since, if we have no power to examine such a vital and fundamental question, we should not be required to listen to arguments that deal only with the competency or relevancy of questions propounded to witnesses, or with the language in which the trial judge may have instructed the jury. The most important question in a criminal case is whether the accused is innocent or...